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Family Law in Contemporary Muslim Contexts

:
Triggers and Strategies for Change
Cassandra Balchin

Family law has been one of the most politically and socially contested
issues in Muslim contexts in the contemporary period. This has had
both positive and negative aspects. On the one hand, it has opened up
the possibility of discussing matters and power relationships previously
regarded as strictly belonging to the private sphere. But on the other
hand, women’s autonomy has at times been threatened in a sphere
that holds the key to the realisation of their rights across all aspects
of their lives. While positive change or protection of threatened family
law rights in Muslim contexts has almost always been actively instigated
by women, increasingly women are also leading a demand for the
reconceptualisation of family relationships based on clearly articulated
concepts of equality and justice.
This paper explores this demand for positive change in family
laws and for the protection of rights, illustrating ways in which equality
and justice in the Muslim family have become increasingly possible.
After citing examples of the immense diversities in legal systems and
laws relating to families in Muslim countries and contexts, the paper
outlines a variety of strategies used by activists to promote equality and
justice in family laws and responses to situations in which existing rights
are threatened. Because of space constraints, this paper cannot discuss
the enormous social and economic changes that have taken place within
Muslim societies and that underlie the need to reconceptualise family
relationships based on principles of equality and justice.
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Defining the ‘contemporary period’ in relation to family laws in
Muslim contexts is not easy. In some countries (e.g. in South Asia),
codification processes—often the main vehicle for changes in law —began
during the colonial period and have been expanded in the post-colonial
period. In others (e.g. in the Gulf states and parts of francophone West
Africa), codification is an issue raised only in the past decade, while in yet
others (e.g. Nigeria), existing Muslim family law is part of an uncodified
continuity stretching back to when communities first embraced Islam.
For the purposes of this paper, I shall concentrate on developments in
the past four decades. This is a period when two countervailing forces
have become particularly visible: women’s collective activism for their
rights as well as absolutist visions of religion that seek control of politics
and society (sometimes referred to as religious fundamentalisms).

I. Diversities in Legal Systems and Family Law Outcomes
for Women

Law reform processes in Muslim contexts have been every bit as
diverse as the legal systems, political systems and social customs
informing the interpretation and application of laws, and the
interpretations of Muslim jurisprudence that prevail in these societies.
There are diversities in terms of sources of law, ranging from
various interpretations of the Qur’an and Sunnah, to colonial common
law, the Napoleonic Code and Soviet code. Some countries, such as
Nigeria, have plural legal systems with parallel customary, Shari‘ah and
general1 courts, while others, such as Turkey’s system, are unitary. In
some countries, such as Cameroon and India, a couple can choose
which system (customary, religious or general) they wish to be governed
by, whereas in others such as Egypt and Sri Lanka (majority and minority
communities respectively), Muslim couples are automatically governed
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by Muslim family laws. Malaysia has a federal system in which the various
states have jurisdiction in developing and applying family laws, while
Algeria is a highly centralised unitary state. In countries such as Britain
and Germany where there are Muslim minority communities, a unified
civil law is often applied differently by the courts in matters involving
Muslims. Court systems are also varied: in Pakistan a single family court
system hears cases for all communities, while in Syria multiple courts
adjudicate on the matters of different religious communities.
For many issues in women’s lives, criminal and family laws are
inextricably linked. For example, the requirement of registration of
marriage, generally seen as a positive step in reform efforts, can
become less beneficial to women when sex outside of a valid marriage
is criminalised through Hudud laws. In some systems, violation of
family law provisions (e.g. on polygamy, child and early marriage, and
maintenance) are also criminalised. More broadly, family law is also
often linked with constitutional law, which may for example recognise
the status of customary and/or religious law, including in family matters,
or set up seemingly irresolvable contradictions between gender equality
and the right to religious freedom.
The practical outcomes of all these variations for women’s
lives are equally diverse. Bangladesh, influenced by customs denying
women ownership of property, makes no legal provision for post-
divorce maintenance, whereas in Tunisia it is provided for—at least in
the relevant statute. Sri Lanka and countries in South-East Asia, where
the Shafi‘i school dominates, require a wali (guardian) even for an
adult Muslim bride, while there is no such legal requirement in Hanafi-
dominated Pakistan and Bangladesh. There is also a great diversity of
legal positions on the issue of polygamy, ranging from an outright ban
(Tunisia and Turkey, with the sources of law being religious and secular
respectively), to completely unregulated (Saudi Arabia and Nigeria) and
partially regulated (Egypt, Malaysia and many other Middle Eastern and
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Asian countries). This extraordinary diversity explodes the myth of one
homogeneous ‘Muslim world’ propounded by both orientalists and global
media, as well as by right-wing forces within Muslim societies.
But there is a commonality: whatever the diverse positions of
laws and customs on family law issues, these are frequently justified
with reference to religion or the preservation of a religious-national/
religious-ethnic identity. The vast majority of women are marginalised
from the power structures that determine processes of legislative
reform and community identity formation. Thus the needs and concerns
of women arising from their daily struggles are rarely, if ever, addressed
in local laws and customs. In those Muslim contexts where legislation
has been introduced or where customs have been changed in ways that
increase women’s life options, the goal of the process has often been
the strengthening of the religious/ethnic or national community, and not
women’s empowerment—and particularly empowerment of marginalised
women—per se.
Nevertheless, over the past some 100 years, women’s demands
for a transformation of their family lives—often impacting deeply
on the possibilities for their engagement in the public sphere—
have also brought about some beneficial tinkering with family law.
Occasionally, and with gathering pace since the turn of the twenty-first
century, there have been wholesale and positive transformations of the
concepts underlying family relationships.

II. Feminist Demands for Equality and Justice

It is important to remember that demands for equality and justice in
family law have meant both reform as well as resistance to (regressive)
reform; the latter issue will be dealt with in the section on nation-building,
state Islamisation and identity politics later in this paper. Moreover, I see
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‘feminist’ as including those men who have challenged the oppression
that patriarchy brings to the lives of both women and men, even though
it is acknowledged that many men, and indeed women, who are part of
this struggle would not identify themselves as ‘feminist’.
Demands for equality and justice have arisen largely out of
women’s lived experiences that legal systems as they currently stand do
not meet their needs. Such demands are not new. When Pakistan’s Prime
Minister decided to take a second wife in the early 1950s, his first wife
mobilised the full strength of the country’s major women’s organisation
to demand codification of Muslim family laws and thereby limitations to
men’s exploitation of women in the family. The 1955 Rashid Commission
culminated in the 1961 Muslim Family Laws Ordinance, which provided
for the registration of marriage and divorce and regulated polygamy.
Women’s demands for reform have gained particular
momentum since the 1980s, when feminist researchers and activists
began to move beyond simplistic statements that ‘the system of
patriarchy is oppressive’ towards gathering concrete evidence of how
structures of oppression actually work. This is one of the strategies
that have made moves towards equality and justice in the Muslim
family possible, and which are discussed in more detail below.
Limitations of space mean I cannot examine here all the social,
political and economic factors that have made such moves possible,
but it is important to highlight the normalisation of concepts of
gender equality and human rights. Thus, while women may have
been making demands for equality and justice for centuries, it is only
more recently that these have taken a conscious shape as collective
action for women’s rights, and that society as a whole has become
more receptive to the recognition of such rights. Today, even right-
wing political parties based on religious identity must at least claim
that their positions favour women’s rights. States have to sign on
to international treaties recognising women’s equality, and are also
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increasingly under pressure to withdraw reservations to, for example,
family related articles of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) that were made in the name of
protecting cultural and religious specificity. This is a profoundly important
context for the promotion and protection of women’s rights within the
Muslim family.2
Although women’s collective organising for their rights has had
positive impacts on family law reforms in Muslim contexts, one must
be careful not to ascribe all positive changes to women’s efforts. For
example, in Cote d’Ivoire (38 per cent Muslim), people are increasingly
rejecting customary and informal courts in favour of courts applying
general civil law (which usually have better outcomes for women) due to
urban migration and the breakdown of traditional community structures
rather than women’s advocacy efforts.

III. Strategies Used to Promote Equality and Justice in
Family Laws

This section outlines different strategies used by activists to demand
an expansion of women’s rights in family laws. Responses to situations
where existing rights are threatened are discussed in a later section
on regressive law reform processes. For ease of analysis, strategies
discussed here are divided into two main groups: first, those related
to campaigning and advocacy methods, and later those more related
to analytical and conceptual perspectives. This can only be a very
broad overview of strategies and cannot possibly reflect the diversity
and creativity involved even in just one country’s experience of positive
change. The examples here have been chosen largely because they
clearly illustrate the point that positive reforms in family law in Muslim
contexts are indeed possible.
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i. Documenting Women’s Lived Realities and Experiences of
Injustice

Exposing the failings of current legal systems through careful research of
women’s lived experience of the law has been a vital strategy.
In Iran, for example, the massive loss of male life in the Iran-
Iraq war left thousands of widows. Yet Iran’s custody laws, based on
a male-centred interpretation of Muslim jurisprudence, meant that
widows frequently lost custody of their children to the families of their
dead husbands. Iranian women’s rights activists successfully argued for
reform of these unjust provisions by publicising examples of the extreme
emotional hardship they caused, and questioning how such provisions
matched the 1979 Revolution’s slogan of Islam and social justice, and
the authorities’ glorification of the sacrifice of (male) lives in the war.3
In 2001 in Malaysia, Sisters in Islam (SIS) organised a press
conference in the hope of embarrassing the government into making
legislative changes. Failing to bring about reform through the
submission of memoranda, SIS decided to produce public evidence
of the injustices suffered by Muslim women in the administration
of family law by the country’s Shari‘ah court system. One single
mother related how she had to fight for five years to get a simple
divorce from a violent husband who had sprayed her with acid.
Because she had to constantly flee from her husband, she failed to
file a case in time and lost alimony and financial support guaranteed
under the local Shari‘ah provisions. Such concrete evidence of
inequity forced the government to promise to speed up the creation
of a family court system extending protection to Muslim women.4
In 2006, Bahraini women took a similar approach in their campaign
for codification. A group of women directly affected by the injustices
of the current system toured Europe and shared their life stories in order
to build pressure for reform.
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A comparative research approach appears to have been
particularly popular because revealing similarities and diversities
in women’s lived experiences strengthens analysis of the power
structures that underlie these experiences. Examples of such comparative
research which has led to practical support for demands for equality
and justice in the family include the Women & Law in the Muslim
World Programme of the network Women Living Under Muslim Laws,
which ran for over a decade starting in 1991 and spanned over twenty
countries.5 Meanwhile, the network Strategic Initiatives for Women in the
Horn of Africa (SIHA) is currently planning regional research on women’s
experiences of different aspects of family laws.

ii. Mobilisation through Consensus-building and Broad-based
Platforms

The use of consensus-building and broad-based platforms to consolidate
women’s advocacy efforts and mobilise public opinion in favour of one
specific demand has had considerable success.
For example, in 2001, the Turkish Parliament finally accepted
1030 amendments to Turkey’s Civil Code, signalling the victory of a
protracted lobbying campaign by the country’s women’s movement. The
amended code finally establishes the equality of men and women in
the family by abolishing the clause that defines the man as the head
of the family and by providing for a 50/50 division of all matrimonial
property. This followed a major public campaign involving women’s
groups all around the country, overcoming traditional divisions within
Turkey’s women’s movement and strong resistance from nationalists
and religious conservatives who insisted on the retention of the separate
property regime in force since 1926. Similarly, in Morocco a broad-based
coalition of women’s groups overcame opposition from the religious right
and led to reform of the Moudawana (Personal Status Code) in 2004.
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Last year, a three-year programme uniting nine civil society organisations
towards reform of the personal status law was launched in Egypt.
Mass mobilisation has also been used to support piecemeal
change where a reconceptualisation of family relationships (as envisaged
in Turkey and Morocco) is strategically not yet possible. For example, in
2003, lawyers and other volunteers in Syria collected 15,000 signatures
in favour of women-friendly amendments to child custody provisions—
enough to make the Syrian Parliament agree to study the proposal. The
law on custody was ultimately changed, but only through a decree from
the (Alawite minority) President, which avoided the risk of stirring up
organised Sunni Muslim protests.6 This illustrates the experience that
in some contexts mass mobilisation can bring a backlash, and thus
lobbying with specific lawmakers may be more effective.

iii. Lobbying with Lawmakers and Raising the Political Stakes

Family law reform suffers from a number of specific constraints.
These include the fact that frequently those most in need of the reform—
usually women—are a group with a lesser voice and poorer access to
lawmakers. Nevertheless, direct lobbying around family law reform—
without necessarily first mobilising a groundswell of public opinion in
favour of the reform—has been successful.
A recent example is the 2000 expansion of divorce options for
Egyptian women recognising the concept of khul’. Women’s groups made
a conscious effort to unite around the issue and sought male support
within Parliament. They also closely lobbied the Minister of Justice and
identified key parliamentarians who could convince others in a sort of
snowball effect.
Increasingly, women have also begun to access concepts of
citizenship and to use their power as voters to raise the political stakes,
such that lawmakers, governments and authorities can no longer risk
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ignoring women’s demands. The ‘One Million’ march and signature
campaign in favour of wholesale family law reform in Morocco played a
major part in ensuring a successful campaign, and a similar ‘One Million
Signatures’ campaign has been launched to support reform in Iran.
But in the political contexts that characterise many of our
countries, there are dangers in efforts to lobby a specific group of
decision-makers or parliamentarians. One Fiji women’s activist lawyer
of Indian Muslim origin spent years lobbying for a comprehensive family
law reform package—only for the Parliament to be dismissed during
political instability precisely the week that the reform package was
tabled for debate. Once some form of stability returned, she found she
had to begin from scratch with an entirely new set of politicians and
parliamentarians, although she ultimately succeeded and Fiji now has
possibly the most forward-thinking family law in the world.

iv. Focusing on Procedural Amendments

Additionally, women’s groups have also advocated for procedural reform,
acknowledging that the ‘law’ is far more than a specific family code and
that winning guarantees of rights in the text is only half of the battle.
Some of the ways in which existing legal systems fail to address
women’s needs relate specifically to women, such as the absence of a
gender-sensitive judiciary. Others, such as the lack of legal aid, protracted
procedural delays, grey areas in jurisdictional matters, and weak legal
drafting leaving litigants vulnerable to cultural and social biases, obstruct all
disadvantaged groups’ access to justice. But they are particularly significant
for women in domestic disputes since in many jurisdictions women form
the majority of plaintiffs in family law and domestic violence cases, and the
failure of legal systems to guarantee and protect their rights leaves them
vulnerable in their most immediate sphere of experience—the family.
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Moreover, focusing on amendments in procedural law may be
more manageable and may bring immediate relief to thousands of
potential litigants, particularly when the political context militates
against substantial legislative reform. The expansion of Egyptian
women’s rights to divorce through the introduction of procedures for
khul’ came through a cleverly crafted procedural amendment rather
than overtly adding khul’ to the list of divorces possible for women.
The vitriolic nature of the media debate around the proposed provisions
indicated that had the direct reform route been taken, the amendment
may not have passed.

v. Communications and Public Advocacy

Most successful campaigns for change have a strong communications
and public advocacy elements, and family law reform efforts in Muslim
contexts have followed this pattern.
Algeria’s 20 Ans Barakat! (20 Years Is Enough!) campaign
produced a wonderful short DVD with a campaign song that
raised the family law issue and inspired support from women
across social classes. Morocco’s reform campaigners produced
several highly effective publications for various audiences, including
a pamphlet called Necessary and Possible that was specifically
designed to advocate with the King and those who could make
a new Moudawana happen. Sisters in Islam in Malaysia have
consistently developed and used alliances with media to strategically
increase pressure on lawmakers for positive change in the family
law, while in Pakistan a process of public advocacy spanning
several years led to important amendments to provisions regarding
zina—a topic which in Pakistan is intricately connected to validity of
marriage and choice in marriage.
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vi. Demands for Reform Based Within the Framework of Religion

Claiming the right to ijtihad and using jurisprudential tools such as
takhayyur and talfiq (selecting context-appropriate interpretations from
across the various schools of law) as a basis for positive family law reform
in Muslim contexts is not new. In pre-independence India, the 1939
Dissolution of Muslim Marriages Act, which codified women’s access to
divorce, drew upon schools beyond the locally dominant Hanafi school
that offered only very restricted access. In Tunisia, the use of ijtihad
legitimised state-led reform of the Personal Status Law 1956,7 which had
famously banned polygamy on the basis of reinterpretations of Qur’anic
provisions. The Rashid Commission, which led to Pakistan’s Muslim
Family Laws Ordinance 1961, explicitly referred to ijtihad.
What is new, however, is the growing confidence with which
the right to ijtihad is being claimed by female scholars and theologians
who support equality and justice within the family, and by women’s
groups. The latter have particularly focused on self-education in fiqh
and tafsir.
Numerous sources argue that gender justice is completely
compatible with, and even an essential ingredient of, Islam’s principle
of social justice and community well-being.8 It is not the place of this
paper to discuss whether or not the use of arguments from within a
religious framework is an appropriate strategy in any given context. But
it is clear that over the past two decades in particular, faced with the
growing political power of religious groups and the reality that religion is
a fact of social life, women’s organisations have increasingly also based
their demands for positive reform within a religious framework.
In Malaysia, for example, Sisters in Islam have uncompromisingly
and successfully advocated from within the framework of religion for
both procedural and legal reforms benefiting women in the areas of
family law and violence against women. They have been invited by the
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government to submit further recommendations for family law reforms
and have developed good working relationships with a number of Shari‘ah
court judges. Currently some of the most progressive reinterpretations
regarding gender and Islam are coming out of Indonesia, where state
research institutions and Islamic universities have led attempts at family
law reform.
Over the past two decades, Iran stands out for its vibrant
debates around family law reform from within the framework of religion.
Whether as a strategic choice given the impossibility of secular and/or
supposedly ‘Western’-framed rights-based approaches or whether out
of conviction that a progressive interpretation of Islam offers women
the possibility of equitable rights within the family, women’s groups in
Iran have initiated an extraordinarily powerful movement for reform,
challenging the conservative interpretations introduced in the immediate
post-1979 period. They have engaged with religious scholars and
launched widespread public debates; they have carefully documented
the impact of inequitable provisions, giving a voice to women’s daily
experiences. Through their campaigns and a very calculated use of their
power as voters, Iranian women have secured a new official marriage
contract that lists in detail the wife’s divorce rights. It also provides for
a 50:50 division of marital property in the event of talaq ‘not due to the
fault of the wife’. Moreover, since 1993, following another struggle by
women’s groups, husbands divorcing their wives are legally obliged to pay
‘wages for housework’ in addition to the nafaqa and mahr due to wives
according to the Muslim family law. The precise amount is determined
by the court on the basis of the number of years of marriage and the
status of the couple. Even if they acknowledge the difficulty in enforcing
such provisions, Iranian women activists argue that the reforms have
considerably strengthened women’s bargaining power and in particular
have effectively redressed some of the imbalances present in custody
and divorce provisions for women.9
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But in societies where there are substantial non-Muslim
communities, the ‘from within’ approach can be problematic if it
prioritises religion as a source of public policy. Again, Malaysia
illustrates the problems. ‘Since Malays form the majority of the
Muslim population in Malaysia, any success in uplifting the position
of Islamic law within the legal system may thus be construed by non-
Malays as a win for Malays, thus reducing the space for non-Islamic
institutions.’10 Women’s groups are concerned about a possible negative
impact on communal harmony.
The countries of francophone West Africa can be divided
into two groups, one with uniform family codes applicable to all
communities (usually based on the Napoleonic Code and with adaptations
based on custom and religion, e.g. Senegal, Mali), and the other where
uniform family laws were drafted several years ago but are yet to be
enacted or promulgated due to political opposition (e.g. Chad, Guinea,
Benin). In both instances, focusing purely on reinterpretation is not
regarded as strategically the most useful approach. In both, Islamists are
demanding separate codes for each religious community, which activists
fear will further fragment the nation and cause immense problems for
those marrying across religious lines.

vii. Multiple Frames of Reference and Reconceptualising the
Family

The kinds of pitfalls that arise from using religion as a sole frame of
reference for reform demands were successfully avoided in Morocco’s
inspiring campaign for a new Moudawana. A distinctive feature of
the campaign was that it was rooted in multiple frames of reference
articulated as mutually complimentary rather than mutually exclusive,
which has often been an approach in feminist campaigning. Indeed,
in the case of Morocco, which built on the Collectif 95 Maghreb Egalité
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campaign that also inspired the positive changes in Algeria in 2005, the
use of multiple frames of reference appears to have been a major factor
in the campaign’s success. This strategy combined not only a process
of reclaiming jurisprudence and emphasising the compatibility of Islam
with concepts of human rights, but also documenting women’s realities
and appealing to social reality, highlighting women’s citizenship, and
emphasising the country’s obligations under international human rights
law. In essence, such a strategy provides ‘something for everybody’.
Moreover, in both Morocco and Turkey, women’s activists
deliberately sought for, and won, a complete reconceptualisation
of the spousal relationship. They successfully argued that the
enormous gap between the classic patriarchal construction of the
family (whether under the Napoleonic Code or the old Maliki-dominated
Moudawana) and the socio-economic realities of contemporary family
relationships was damaging society as a whole and therefore needed a
total re-think.
It can be difficult to distinguish between reform efforts that are
based on an entire reconceptualisation of family relationships and those
that merely tinker with existing relations of power. Partly, this is because
legal systems and the realities of family relationships are so contextual.
Thus, while I may regard the content of Bahrain’s proposed new family
law to be disappointingly conservative, Bahraini women counter that any
form of codification sends the essential signal to men that they may not
violate women’s rights within the family with impunity; for them, this is
a very profound change. Even the seemingly smallest change may, over
time, produce a critical mass that leads to a reconfiguration of spousal
relationships. Amendments in 2002 to Pakistan’s Family Courts Act have
introduced the possibility of women filing for a share of marital assets
as part of their divorce proceedings rather than relying on the virtually
impossible procedure of filing a separate civil suit for recovery under
ordinary civil law (which could take decades). Traditionally, women in
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Muslim marriages in the subcontinent who have divorced their husbands
have had to abandon any hope of recovering or sharing assets; this
introduces a hidden imbalance in the marital relationship based on the
threat of financial loss and/or poverty if a woman exercises her right to
divorce. The new law, if routinely accessed by women, could go a long
way toward redressing this imbalance.
The use of multiple frames of reference and the
reconceptualisation of the family are not concepts that can become
popularised overnight, and an important aspect of this strategic approach
to family law reform in Morocco and Turkey was that in both countries,
activists have talked about how they recognised that they were ‘in it for
the long-term’, that this new vision required an enduring commitment to
change that would overcome intermediate set-backs and obstacles.

IV. Regressive Law Reform Processes

Despite the real progress made towards equality and justice in the Muslim
family in recent decades, there have also been grave threats to women’s
existing rights in family law. These have come from weaknesses and
contradictions in post-colonial nation-building as well as from the rise in
identity politics, specifically prioritising religion as the defining aspect of
a person’s identity.
In the 1980s and 1990s, women’s access to justice in many
Muslim contexts was considerably obstructed or reversed by the state.
In places this was part of a deliberate state policy of ‘Islamisation’ (as
in Pakistan, Sudan, Iran, Malaysia, post-unification Yemen, and more
recently certain states of Nigeria), or using religion as a means of ‘divide
and rule’. Palestinian feminists see the Israeli state’s preservation
of different, religion-based family laws for the Arab minority not as
a positive recognition of diversity but a useful means of dividing the
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Palestinian community and perpetuating its social and economic
backwardness.11
In other places, threats to women’s rights were due to the
government’s ‘convenient stance of vacillating and proffering short-
term and piecemeal solutions to some of the most extreme demands
made by the Islamic faction’.12 Having woefully failed to meet its
people’s aspirations after liberation from French colonial rule, the
Algerian Government introduced the regressive 1984 Code de la
Famille (reformed in 2005) as a distraction and a sop to the power of
the religious Right. The state’s failure to see women and marginalised
communities as citizens has allowed the resurgence of informal legal
systems. In Bangladesh, religious groups have sought to use these
informal systems as an entry point to gain greater social and political
control. Since 1993, informal salishes (village councils) have carried
out extreme punishments (including stoning) of women for the ‘crimes’
of divorcing their husbands or choosing their own marriage partners.
Although a 2001 landmark judgement declared all fatwas illegal,13
shifting political alliances and pressure from religious orthodox groups
means the matter remains an election issue even today. In Uzbekistan in
the early 1990s, the government permitted a parliamentary and media
debate on the possible reintroduction of polygamy. Although no reform
followed, this strengthened anti-women biases in the implementation
of family law.14 In Senegal a few years ago, some election candidates
opportunistically raised a brief call for the introduction of separate,
religion-based family laws. These threats continue today elsewhere.
In Gambia, women face threatened reform of family laws based on
conservative interpretations of Muslim jurisprudence as the government
struggles to resist opposition from increasingly influential politico-
religious extremists.
In a number of countries with a significant Muslim minority,
the rise of religious identity politics has led to a debate over the possible
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introduction of separate Muslim family laws. In the Philippines,
although the Moro National Liberation Front climbed down from its
demand for a separate Moro homeland, it continued to demand,
and was granted in 1977, the introduction of a traditionalist Shafi‘i
interpretation of Muslim family law as part of its claim to a separate
national identity.
Whatever the factor behind the regression, women’s role as the
repositories, reproducers and gatekeepers of the cultural and national
collectivity15 have meant that women have often been on the receiving
end of legal reforms and the manipulation of cultural symbols such
as family laws and dress codes. The impact on women has been
well documented.16 For women in Iran, Malaysia, Sudan and Yemen,
the reversals meant the withdrawal of many rights granted under
previous laws that at one time stood out in the Muslim world for their
progressive nature.
In places where regressive reforms were introduced (whether
through parliament or dictatorial decree), such processes were always
characterised by the lack of space for debate and an intolerance of
dissent or alternative interpretations. Across many Muslim contexts,
even under supposedly democratic dispensations, states have tolerated
and even encouraged slanderous attacks by politico-religious extremists
against those demanding rights-based legal reform.
Introduction of regressive family law reform in the name of
nation-building and recognition of identity seems particularly
characteristic of post-conflict contexts where resources are few and
there is a lack of political will to prioritise women’s rights or include
them in negotiations under UN Resolution 1325 (on peace, women
and security). The recent regressive changes in Iraq’s family law
are an example. In post-conflict Sierra Leone (60 per cent Muslim),
international development assistance has revitalised traditional and
largely women-unfriendly adjudication systems.
Family Law in Contemporary Muslim Contexts 227

Rising identity politics have complicated efforts by rights
advocates to protect and promote women’s rights within the
family. In Lebanon (with separate family laws for the 18 religious
communities recognised by the Constitution), women activists
in 1998 demanded a uniform civil code as a counter to the
country’s social fragmentation. But this was bitterly opposed by
almost all the self-declared guardians of the various communities’
identities (with the exception of the Druze community), and
was ultimately shelved for political reasons. In multi-ethnic and
multi-religious India, family laws have been at the centre of extreme
tensions between the country’s Hindu and Muslim communities
following an upsurge in communal politics, and in 1986 rioting
instigated by Muslim fundamentalists led to a regressive change in
maintenance laws for Muslim women. Feminist reform efforts were
hampered by the existence of a Hindu fundamentalist government
which raised the fear that any uniform code would essentially mean
imposing Hindu laws on minority communities.

i. Safeguarding Women’s Existing Rights in the Family

Despite this bleak picture, it is significant that in several of the
countries that saw some of the most regressive changes in women’s
rights in family law, more recently there has been a gradual shift back
towards greater equality and justice—usually due in part to feminist
efforts to promote and protect rights within the family. Thus, even where
there has been a reversal, positive change and protection of existing
rights has ultimately been possible.
Feminists have used a variety of strategies to resist the
problematic aspects of state-imposed ‘Islamisation’ and legal reform
arising out of identity politics, depending upon the particular local
circumstances. Many of the strategies used to protect women’s existing
228 Wanted: Equality and Justice in the Muslim Family

rights within the family are the same as those discussed earlier in the
section on positive reform processes.
In Canada in 2003-5, self-styled ‘community leaders’ sought to
introduce ‘Shari‘ah Courts’ for family matters among Muslims under
the Arbitration Act, 1991. Even though this was to be voluntary,
opponents emphasised that for women, ‘voluntary’ often equates to
social compulsion. The ultimately successful campaign of resistance
featured a broad coalition of believing Muslims, atheists from a Muslim
cultural background, and secularists within wider Canadian society;
public advocacy through meetings and seminars; a deliberate claiming
of women’s right to interpret religion and a process of self-education;
and an emphasis that this was a women’s issue, beyond the question of
religious or cultural identity.
International networking was particularly effective in the
Canadian campaign, and has been important to many other
successful family law campaigns. Activists in Muslim contexts who
challenge the imposition of identity through ‘Islamisation’ and identity
politics frequently face the accusation that their demands for gender
justice are somehow not in consonance with ‘tradition’ and accepted
norms of what constitutes a ‘good Muslim woman’. International
networking brings three important advantages in this context: first,
those struggling to resist regressive reforms become aware that their
struggle is mirrored across the world; this enables them to analyse
more effectively the power structures and political objectives behind
the reforms. Second, networking across boundaries involves a sharing
of information about how women experience the law and legal reform
in other contexts; this strengthens local activists’ awareness of the
potential benefits and pitfalls of legal reform. And third, networking
allows a sharing of strategies. While these may not transfer effectively
from one particular context to another, the sharing of strategies can
undoubtedly inspire new initiatives.
Family Law in Contemporary Muslim Contexts 229

National networking and a locally rooted awareness of what
issues appeal to public and political sentiment is equally vital to
protecting existing rights women have in family laws in Muslim
contexts. Thus women’s rights activists in contexts as diverse as
Senegal and Pakistan have successfully resisted efforts by politico-
religious forces to introduce regressive reforms. The strategy also
works for promoting new rights. In the UAE and Saudi Arabia, activists
demanding codification or improved application of uncodified
jurisprudence have highlighted the extremely high numbers of
divorces to prove that existing provisions are not conducive to the
main leitmotif for the conservatives: a stable family.

V. Long-Term Empowerment Strategies

Despite the success of their campaign to reform the country’s civil
code, leading Turkish women’s rights activists such as Ferda Cilalioglu
argue that, ‘What really needs to change is not just the law but the
mentality of people. Changing the value system will take decades.’17 In
other words, laws may change but legal reform is merely a small part of
societal development.
Even after successful law reform efforts, there is the challenge
of empowering women to access positive provisions. This has led to
the development of the ‘legal consciousness’ concept. Going beyond
simple legal literacy programmes that just inform people of existing laws
and institutions, legal consciousness enables people ‘to identify and
articulate their oppression and exploitation. This is the first stage in the
people’s fight for a more just and equitable society.’18 In concrete terms,
it involves the building of alliances between women’s organisations, the
courts administering family law, and relevant ministries, as is currently
happening in Morocco.
230 Wanted: Equality and Justice in the Muslim Family

Importantly, legal empowerment programmes have not just
focused on statutory law. They have consciously sought to unravel the
interlinkages between custom, religion, legal practice and statutory law,
thus enabling women to analyse more effectively the structures and
sources of their oppression. This, in turn, has enabled them to develop
more effective strategies for the reform of laws in the very broadest sense
of the word. Thus, when the 1994-7 Pakistan Commission of Enquiry on
the Status of Women sought opinions on legal reforms, grassroots women’s
groups were able to provide concrete recommendations that related to
custom, procedural laws and personal laws. These were incorporated in
the Commission’s final 1997 Report,19 and some eventually found their
way into the 2002 Family Courts (Amendment) Ordinance that offered
some real improvement in women’s access to justice.

VI. Evaluating Efforts to Promote and Protect Women’s
Rights in the Family

The actual pace of legal reform may not be a determinant of ‘success’.
Indeed, reform is often rapid where the state is interested in reform
for its own ends and slow where the impetus has come from women’s
demands for justice and equality. Even where rapid reform has been at
the initiative of women’s demands, its very rapidity has later proved to be
problematic, as intricacies (especially around implementation) may not
have been properly thought through.
Moreover, evaluating positive reform and resistance to regressive
change can be difficult both because the impact of attitudinal change
can take decades to appear, and because indicators of success can be
politically contentious. For example, family law reform that leads to an
increase in the number of divorces granted to women might be judged
successful by progressive women’s groups but a negative indicator of the
Family Law in Contemporary Muslim Contexts 231

‘break-up of family and society’ by conservatives. Quantitative indicators
are also inadequate. For example, an increase in cases brought by
women to the courts can potentially ‘prove’ two diametrically opposite
trends: either that the reformed law is failing to provide women a secure
base for their rights and is therefore failing to prevent disputes from
arising, or that the reformed law is now successfully enabling women to
access their rights within the family.
Additionally, reforms have to be examined in the totality of their
impact upon all members of society, and not just those for whom the
reform is ‘intended’. For example, a 1994 amendment to Malaysia’s
polygamy provisions which aimed to protect the rights of the new wife
arguably undermined the original spirit of the law, which sought to
regulate—and thereby discourage—polygamy and to support the rights
of first wives.
Finally, it is essential to challenge the notion that unsuccessful
efforts to introduce positive reform or to prevent regressive change are
an overall failure. The platforms and alliances that are often created
during rights-based campaigns, the strengthening of analysis, the public
awareness raised, the experience gained through interaction with the
political and law-making structures, and the numerous related social
issues raised may well lead to deeper, wider processes of change.

VII. Conclusion

Reform of family laws and protection of rights within the family touches
upon politically contested issues around cultural identity, raises questions
about the rights and responsibilities of the state vis-à-vis the community
and individuals, questions the utility of existing gender dynamics, and
also involves the rights of some of the most silenced members of a
society: women and children. Changes in law must also be seen as a
232 Wanted: Equality and Justice in the Muslim Family

social process, and one in which actual textual amendments are but a
small part. It is only when we take this wider perspective that we are able
to foresee the potential pitfalls of reform and understand its impact on
all aspects of social interaction and the structures of power. Moreover,
the conditions which enable positive reform or trigger regressive change,
as well as the strategies of women’s rights activists that help create or
respond to these conditions, vary according to the particular context.
Small wonder, then, that engaging in family reform and protection of
rights within the family is so challenging.
There have undoubtedly been severe setbacks in some contexts
and there are remaining challenges in many others due to factors
such as regional and national conflict, rising poverty, the persistence
of authoritarian regimes and forces that exploit religion and religious
identity for political gain. Yet despite the strength of these countervailing
forces, overall over the past four decades family laws in Muslim contexts
have been gradually and inexorably moving in a positive direction. While
numerous social, economic and political forces are implicated in this
process, the efforts of women’s rights activists have made it clear that it
is certainly necessary and possible to promote and protect equality and
justice in the Muslim family. In the past ten years, a qualitatively new
and positive direction has emerged in family laws. This emphasises a
comprehensive reconceptualisation of the Muslim family that calls for
an end to outmoded and unsuccessful relationships of dominance and
subordination, and their replacement by loving relationships of equality
and justice. Realising this vision of the family may be a long-term project,
but recent developments have shown that it is now possible to envisage
such a reality in Muslim contexts.
Family Law in Contemporary Muslim Contexts 233

Notes

1 The term ‘general’ is used here to describe family laws introduced
by colonial rulers that were neither based on custom nor Islam.
They are often called ‘secular’ or ‘civil’ law but since all family law
is civil and since these laws are almost always based on a Christian
conceptualisation of the family, I avoid these terms as inaccurate.
2 The inexorable shift towards positive change in Muslim family law
is quite a contrast to the apparent trend in areas of international
law where the Muslim-Catholic-Washington coalition has had
some success in rolling back understandings of women’s rights in
international law debates, in particular in the areas of reproductive
health and rights.
3 Kar and Hoodfar, ‘Personal Status Law as Defined by the Islamic
Republic of Iran’.
4 Kuppusamy, ‘Muslim Women in Plea for Sharia Law Redress’.
5 See http://www.wluml.org/english/pubsfulltxt.shtml?cmd%5B87%
5D=i-87-16766.
6 See http://www.ep.liu.se/ea/iap/2005/003/iap05003.pdf.
7 Kelly, ‘Finding Common Ground’, pp. 81-3.
8 An-Na‘im, Towards an Islamic Reformation; Hassan, Selected
Articles; Wadud, Qur’an and Woman.
9 Kar and Hoodfar, ‘Personal Status Law’.
10 Endut, ‘Malaysia’s Plural Legal System and Its Impact on Women’,
p. 25.
11 Rouhana, ‘Muslim Family Laws in Israel’. The state’s intent may
also change over the years. What may have been the initial post-
colonial nationalist leadership’s vision of respect for religious minorities
in Pakistan has transformed into neglect, wilful or otherwise, under
subsequent regimes.
234 Wanted: Equality and Justice in the Muslim Family

12 Mohamad, ‘Islamic Family Law Reforms in Malaysia’, p. 69.
13 Writ Petition No. 5897 of 2000 (Editor, The Banglabazar Patrika
and others vs. District Magistrate and Deputy Commissioner,
Naogaon), heard by a two-member Bench including Justice Nazmun
Ara Sultana, Bangladesh’s first female High Court Division judge and
reported as 21 BLD (2001) 45.
14 Tokhtakhodjaeva, ‘Traditional Stereotypes and Women’s Problems
in Post-Soviet Uzbekistan’.
15 Yuval-Davis, Gender and Nation.
16 See Helie-Lucas, L’internationalisme dans le mouvement des
femmes; Shaheed et al. Shaping Women’s Lives; Mir-Hosseini, Islam
and Gender; http://www.acttogether.org/.
17 Zaman, ‘Turkey to Expand Rights of Women’.
18 Sobhan, ‘Legal Literacy and Community Development in Bangladesh’.
19 Government of Pakistan, Report of the Commission of Inquiry for
Women.
Family Law in Contemporary Muslim Contexts 235

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